Illinois’ New Salary History Inquiry Ban Law: What you Need to Know!

Contributed by Bethanne McFadden, HRBOOST® Support Specialist

In an effort to dissuade employers from blatant, or even inadvertent, discriminatory actions, Governor J.B. Pritzker signed a law (House Bill 834), which goes into effect September 29, 2019 prohibiting Illinois employers from asking job applicants, or their previous employers, about salary history.  Additionally, the law protects an employee’s right to discuss wages and benefits with others.  Any contract prohibiting that behavior is now deemed unlawful.

It is important to note, that while several states have signed similar laws, a few have, or are attempting to, ban such rulings.  As such, this can leave employers confused as to what is applicable in their state, especially if they have employees across multiple states.

HRBOOST®’s recommendation is a single approach to handling candidate compensation.  Requesting a candidate’s salary expectations for a position is fine, but the onus is now on the Employer to provide the compensation information to the candidate rather than predicated on the employee’s previous history.

Below are some details, outlined by our partners at the law firm Wessels Sherman, that will alert you to the new provisions within the law and how to protect your company moving forward.

Actions Prohibited

Specifically, the law prohibits employers and employment agencies from:

1. Screening job applicants based on their current or prior wage/salary history, including benefits and other compensation by requiring that the compensation history satisfy minimum or maximum requirements;
2. Requesting or requiring a wage or salary history as a condition of being considered for employment, as a condition of being interviewed, as a condition of continuing to be considered for an offer of employment, or as a condition of an offer of employment or an offer of compensation.
3. Requesting or requiring that an applicant disclose wage or salary history as a condition of employment;
4. Seeking wage/salary history, including benefits or other compensation, of a job applicant from any current or former employer.

Exclusions

These provisions are inapplicable where: (a) the employee’s wage/salary information is a matter of public record through the Freedom of Information Act or is otherwise publicly available (for example, certain public sector employees, executives at publicly traded companies and not-for-profit corporations); or where, (b) the job applicant is a current employee applying for another position with the same employer. In addition, the Bill makes clear that it does not prohibit an employer from (a) providing information regarding the wages/salary, benefits and other compensation offered for a particular position; and from (b) engaging in discussions with an applicant regarding their expectations with respect to wage/salary, benefits and other compensation.

An employer does not violate the Act if an applicant or employee voluntarily, and without prompting, discloses their current or prior wage/salary, benefits and other compensation information, provided that the employer does not rely on the information as a factor in determining whether to offer the applicant employment, in making an offer of compensation or in determining future wages/salary, benefits or other compensation.

Damages and Penalties

Private Action

If an employer violates these terms, the employee may sue and recover compensatory damages, “special” damages, not to exceed $10,000 as well as attorney’s fees. An employee may only recover compensatory damages to the extent that they exceed any awarded special damages.

Department Action

The Department has authority to supervise payment of unpaid damages and penalties and to seek injunctive relief as well as to file a lawsuit to recover substantial penalties up to $5,000 per violation of this law.

Statute of Limitations

Employees may bring an action within 5 years from the date of the violation.

It is imperative that employers work along with their dedicated HR team to update their company’s applications, recruitment processes, and handbooks to ensure they are not in violation. HRBOOST® is here to help!